In any personal injury case, the injured person must connect the accident to the alleged injury in order to receive damages.  The Florida Fourth District Court of Appeal recently assessed in a Florida car accident case, No. 4D17-1900, whether it was an error for the trial court to allow an expert witness for the injured person to testify about causation and permanency in violation of a trial preparation order.  The plaintiff driver's wheelsought damages for the bodily injuries she sustained due to an accident.  The driver of the other vehicle admitted fault but denied the accident caused the victim’s alleged injuries.  The case moved forward to trial to determine whether the accident did cause her injuries, whether those injuries are permanent, the reasonableness and necessity of medical bills, and damages.

The defendant objected to one of the injured person’s expert witnesses, an orthopedic surgeon, but the court allowed the expert to opine on the causation and permanency of the plaintiff’s injuries.  The surgeon testified the injured person’s shoulder was damaged as a result of the car accident and required surgery.  The physician described his course of treatment and provided copies of the total bill of $58,000 from his practice group.  The injured person also testified, discussing the multiple treatments she received to remedy the injuries from the accident.  The injured person went to an urgent care facility on the day of the accident to address pain and stiffness in the back of her neck and a numbing sensation starting at her shoulders and reaching through her arm to the fingertips.  The injured person additionally described seeking help for several months when she went to physical therapy and underwent an MRI.  Eventually, surgery was recommended by two separate physicians.  The injured person testified she underwent the procedure and had to follow up with additional post-surgical care to improve her strength and ability. 

On appeal, the defendant asserted the trial judge erred in the dismissal of his motions because there was insufficient evidence about the reasonableness and necessity of past services provided for the injured person’s medical care.  Florida requires an injured party to produce more than the mere bill for expenses to prove whether the amount was reasonable.  The defendant argued the physician’s testimony was unnecessary to show the necessity and reasonableness of the bill, but the injured person’s lay testimony was acceptable.  The defendant claimed that since there was no testimony from the injured person connecting each bill to the accident, there was no testimony meeting the burden set by Florida statutes and case law. The appellate court was unpersuaded by this argument and concluded the plaintiff sufficiently proved the reasonableness through her testimony and her expert’s testimony. 

The Florida Motor Vehicle No-Fault Law is designed to help all of the parties involved in a Florida car accident.  The statute attempts to provide available funds through the purchase of mandated auto insurance to an injured driver or passenger under a policy while minimizing costs to the auto insurer and the insured public at large and adequately paying medical treatment providers.  The statute requires an insurer to reimburse a percentage of reasonable expenses for medically necessary services.  An insurer may choose to limit its payment by utilizing a schedule of maximum charges delineated in section 627.736(5)(a)(1).  If an insurer uses this limitation, it must provide notice to the insured of the policy.

The Second District Court of Appeal reversed a summary judgment for a medical center fighting to receive larger Personal Injury Protection (PIP) payments than the schedule of maximum charges in section 627.736(5)(a)(1)–(5), Florida Statutes (2013).  The appellate court Taking Moneyfound the language in the auto insurer’s policy clearly and unambiguously elected to limit reimbursement payments and should have been upheld.  The appellate action stems from 19 PIP claims made by parties injured in car accidents in 2013 who were using the same auto insurer.  The insureds all assigned their auto insurance benefits to the medical facility, which then submitted bills to the auto insurer.  The insurer paid a portion of the 19 submitted bills, following their schedule of payment in the policy.  The medical facility disputed these amounts. 

The auto insurer chose to file an action seeking a declaration of rights under the policy and the PIP statute, section 627.736 of the Florida Statutes.  The medical facility countersued, also seeking a declaration of rights and obligations under the auto insurance policy and an injunction to prevent the auto insurer from continuing to limit its payments for charges.  The policy stated they would pay reasonable charges for bodily injuries, in accordance with the PIP statute.  The insurer advised in this policy it would limit the payment of medical expenses described in the insuring agreement to 80% of a properly billed and documented reasonable charge.  The ceiling on the payment was 80% of the schedule of maximum charges, including the use of Medicare coding policies and payment methodologies.

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When an injury occurs on the premises of a business, it can be difficult to determine who is liable for the accident. When there are multiple entities involved, including insurers, indemnity often comes up between the parties.  Insurance companies often indemnify their insureds, meaning that they handle the suit on behalf of the insured.  Sometimes two companies can agree between themselves that one will indemnify the other in certain situations.  The First District Court of Appeal addressed a question of indemnity in a Florida premises liability case, No. 1D16-5675.

A woman was trapped and injured in an office building elevator.  The property owner had previously entered into an elevator service contract, hiring a company to be responsible for the maintenance and repair of the elevators in the office building.  This included responding to calls Elevator waitfrom people trapped in an elevator.    After the injured person filed suit against the owners of the office building for negligence, the property owner sought indemnification from the elevator maintenance company, per the agreement.  After the contractor refused to indemnify, the property owner filed a cross complaint against the contractor for not honoring the contract, asserting the property owners were not at fault. 

At trial, the jury found the property owners and the maintenance contractors to be 50 percent at fault in their response to the elevator malfunction.  The office building owners moved for a directed verdict, which was granted, absolving them of liability as the legal cause of the plaintiff’s injuries, but still holding them liable for providing safe operation and proper maintenance.  The property owner and the elevator company each reached their own settlement agreement with the plaintiffs during the second phase of the bifurcated trial.  The agreement between the property owner and the injured person was disclosed to the jury, but the agreement between the elevator maintenance company and the injured person was not.  The jury returned a verdict of $13 million, which was in excess of the settlement amount.

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The Fifth District Court of Appeal reached an interesting conclusion in Case No. 5D16-2794 in a Florida wrongful death case involving a corporate pizza chain, its franchisee, and a widow who was not married to the decedent at the time of the accident.  The decedent was first injured in a serious car accident after he swerved into the median to avoid another car that pulled in front of him.  This move caused his car to drift back over into his lane and flip a couple of times.  The driver became a quadriplegic as a result.  The other car was driven by a pizza deliveryman.  A month after the accident, the injured person filed suit against the driver, the owner of the pizza shop, and the pizza corporation, claiming the driver was negligent and the franchisee and corporation were vicariously liable for the deliveryman’s negligence. 

Within a year of the accident, the injured person married his girlfriend, who was a passenger at the time of the accident.  Soon after that, he died, and his wife became the personal representative of his estate.  She continued with the original action and included a claim for wrongful death damages as the injured person’s surviving spouse.  The franchisee settled its part of the claim with the deceased’s Highway Speedingspouse for $1 million.  The pizza corporation filed many motions for summary judgment that argued the widow was not a surviving spouse under the Wrongful Death Act because she was not married to the decedent at the time of the injury, that it was not vicariously liable because it did not exercise control over the franchisee’s day-to-day operations, and that all but one claim for medical and hospital expenses were barred because no claims had been filed in the probate proceeding.  All of the motions but the medical expenses were denied, limiting the surviving spouse to only recover $1,165.67 for the expenses claimed.

At trial, the jury found against the pizza company, finding the franchisee was an agent of the corporation, the driver’s negligence was 90% of the cause of the deceased’s injury and eventual death, and the total expenses for the home renovations necessary to accommodate the deceased’s injuries were over $100,000.  The jury also awarded the widow $10 million for loss of companionship and mental pain and suffering as a result of her husband’s death.  The company sought a directed verdict and a new trial, arguing the closing argument was improper. 

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In a recent Florida brain injury case, a teenager suffered permanent brain damage after her treatment for hydrocephalus at a Medical Center and Children’s Hospital. The teen had been diagnosed with hydrocephalus at 12 years of age, caused by a tumor creating a build-up of excess cerebral spinal fluid in the brain. To assist with the blockage, she underwent surgery, which went well. Another procedure was Expanse of brainscheduled two years later to address the scar tissue left by the first procedure and remove the blockage building back up.

Before she could undergo surgery, she began vomiting and experiencing painful headaches. The girl’s parents called the children’s hospital, which advised them to take her to the nearest hospital for a CT scan, if they could not make it to their facility. The daughter arrived by ambulance and was labeled as an “urgent” status rather than emergent or non-urgent status. The treating doctor in the medical center ordered a CT scan and examined the teen. The physician noted a normal pupillary exam with no deficits to her eyes. Another eye exam was performed, which again showed her pupils reacted to light and were equal to each other. When the CT scan results came out, the radiologist determined the teen’s hydrocephalus was worsening based on a comparison to a scan taken six months earlier. Despite this, the treating physician at the center called the teen’s pediatrician and reported her condition as “stable.”

Transit from the medical center was arranged between the children’s hospital and the medical center. Within the hour and twenty minutes between the call from the treating physician and the estimated pick-up time by the helicopter, the teen began vomiting and experiencing a low heart rate. This was relayed to the children’s hospital and medical center staff. The teen was then placed on the helicopter 25 minutes after the estimated arrival time and examined by medical staff onboard. The nurse determined she had a decrease in speech but was able to respond to her mother by nodding her head. The teen was taken straight to the ER, but she arrived in critical condition and had to undergo an emergency ventriculostomy. Even though the procedure saved her life, the teen suffered permanent brain damage with great mental impairment. The teen is no longer able to feed herself, nor is she able to live or work independently.

Section 627.727, Florida statutes delineates the requirements for (UM) uninsured motorist coverage – specifically how an insurer must document the rejection of coverage. The insured can select UM coverage lower than the bodily injury liability limits of the policy or reject coverage entirely, but she or he must do so through writing. In a recent Florida car accident case, No. 4D17-332, the court looked at whether an insurance company failed to follow the UM statutory guidelines. The insured purchased uninsured motorist (UM) coverage for two vehicles. He filled out an online form, which did not allow him to sign anything, nor did it provide the ability to reject or deselect non-stacked coverage. The signing page also did not have warning language, as required by law. The appellate court determined the insurer failed to comply with the written notice carprovisions, and as a result, the insured did not knowingly reject stacked coverage or accept non-stacked UM coverage.

The trial court judge found the documentation used by the insurance company did not comply with the specificities of Florida statute 627.727. The written notice with warning language was to be in a 12-point font and signed by the insured. The warning page did not have a signature line for the insured and was not signed by the insured. A different page had a signature but only incorporated the required warnings by reference. The judge also noted the online form did not allow a user to un-select the automated waiver of stacked coverage. The judge granted the insured’s motion for summary judgment, and the insurer appealed. The insurer did not argue against any of the judge’s findings on appeal, instead claiming the policy-holder orally rejected the stacked UM coverage. The case went on to be tried on the oral rejection issue alone, with a jury verdict in favor of the insurance company.

Section 627.727, Florida statutes is filled with very specific requirements preceded by the word “shall,” strictly limiting the interpretation to what is within the body of the statute. The appellate court noted this was all written with the intent to promote UM coverage and avoid costs borne by the taxpayer after car accidents. The court stated the legislature understood the short attention span of the average consumer and the need for essential information to be relayed efficiently and prominently, thus coming up with the specific requirements. Various appellate courts and the state’s supreme court reviewed these statutory mandates and found them to be acceptable. The legislative history shows this to be a compromise between keeping drivers adequately covered in the event of a UM accident and the insurance companies’ competition.

Businesses are expected to exercise reasonable care over their premises, providing inspection, maintenance, repairs, or warnings of any foreign object or substance. If the business fails to provide this to its customers, and this failure results in injuries, the property owner or manager can be held liable for the injuries and expenses incurred as a result. A Fourth District StorefrontCourt of Appeal case reviews the type of proof needed in a premises liability action for a successful result for the injured person in Decision No. 4D16-3413.

The plaintiff slipped on liquid laundry detergent while in a “big box” store. His injury resulted in incurred medical expenses. The injured person described the person in front of him as carrying a “leaking” laundry detergent bottle, which spilled the substance on which he slipped. The injured person filed suit against the store, alleging negligence, and won $250,000 in damages. The trial court judge denied all post-trial motions made by the store, which appealed the verdict in favor of the injured person.

The store argued on appeal that the court should have granted its motion for a directed verdict. The store claimed the injured person failed to sufficiently plead a prima facie case for negligence by using the theory of negligent mode of operation. The injured person countered that the store’s operation was negligent because of its policy of using a high-gloss finish on its floors, resulting in a constant wet-look finish. This persistent wet look makes it increasingly difficult for patrons to be able to see translucent liquids, due to the reflection off the floor caused by the bright lights.

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The Florida District Court of Appeal recently issued a decision in an appeal stemming from a final arbitration in a Florida wrongful death medical malpractice case. The arbitration panel awarded economic damages for loss of companionship and guidance to the husband and child of a deceased woman. They also awarded the maximum statutory limitation for the non-economic damages of lost support. The defendant hospital appealed the damages in favor of the deceased’s relatives, claiming the panel erred in its award.

The estate filed suit against the hospital and treating doctor, alleging their collective negligence led to the death of the pregnant woman. The estate agreed to participate in a binding arbitration to Family togetherdetermine damages, pursuant to section 766.207 of the Florida Statutes (2014), which sets limits on the amount of damages awarded. Noneconomic damages are limited to a maximum of $250,000 per incident, for each claimant. Net economic damages are offset by any collateral source payments and include 80 percent of wage loss and earning capacity and past and future medical expenses, among others.

The parties agreed to the maximum $250,000 each in noneconomic damages for the husband and daughter, so the arbitration panel reviewed what should be awarded for loss of services, support, and attorney’s fees. On appeal, the hospital argued the estate expert’s inclusion of loss of guidance and companionship analysis was an attempt to value non-economic damages, which had already been awarded. The hospital also objected to evidence offered of the wife and mother’s goals and aspirations through a vocational expert as an effort to go around the cap on noneconomic damages.

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A successful personal injury trial for a plaintiff primarily hinges on whether or not the fact finder believes it is more likely than not the defendant(s) caused the resulting injury due to negligent behavior that falls short of a legal duty. While a jury is given great discretion in the type of facts they find to be true and supportive of a claim or defense, the trial court can make a determination at the end of each party’s presentation of evidence on whether or not the facts presented meet the set legal standard. If the facts fall short of the legal requirements for a successful claim, the court wet storefrontcan issue a directed verdict. If this occurs at the end of the trial, it can override a jury verdict.

A motion for a directed verdict in a Florida slip-and-fall lawsuit was recently considered in a Florida Third District Court of Appeal decision. The grocery store argued on appeal it was entitled to a directed verdict because the injured party’s evidence fell short of showing the store had actual knowledge of the dangerous condition or that one of its employees caused the dangerous condition to occur. The Court of Appeal agreed, reversing the million-plus jury verdict and remanding the case for a new trial.

The injured person fell during a shopping excursion with her husband. The 70-year-old lady realized she forgot some items while in line to check out. Her husband went to find these products but also decided to buy some other things and order a sandwich. During this period, his wife went to find him after he took so long to return, falling and slipping on some water. She did not notice this water prior to the fall. When the husband returned to the checkout area, he found his wife sitting in a chair crying. The husband testified he remembered seeing a man with a “mop in his hand,” but he did not specifically recount what he was doing. The wife also testified she saw an employee with a mop in his hand, but she failed to provide any details beyond this description.

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Civil courts have the power to sanction parties if actions taken or not taken during a litigation period are egregious to the process. A recent Florida uninsured motorist accident appeal heard in Florida’s Fifth District Court dealt with a sanction issued by the trial court to the party. The appellate court felt dismissing the action with prejudice was too harsh a penalty for the concerning behavior.

The plaintiff was injured by an uninsured motorist on a highway in 2014. The injured person’s policy provided $250,000 worth of uninsured motorist coverage. His insurance company denied his Highwayclaim for benefits, and the injured person filed a breach of contract claim against his insurer. During the discovery phase, the insurance company subpoenaed the injured person’s medical records and history, insurance claim history, and employment history.

As a courtesy, the injured person advised the defendant insurer that he was scheduled for surgery within a few weeks. The insurer asked for a compulsory medical examination (CME) prior to the scheduled surgery, and it offered two dates for this to occur prior to the procedure. The injured person advised he could not make either date. The insurer then asked the court to mandate the injured person to undergo the CME, asserting there was insufficient time for it to conduct one before the injured person’s surgery. The trial court granted the motion, ordering the injured person to undergo the CME or delay the procedure. The trial court also required the insurer to provide two more dates for the CME.

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